Benson v. Sioux Falls Med. & Surgical Clinic

• Decision Date: 28 June 1934
• Docket Number: No. 7439.,7439.
• Citation: 62 S.D. 324,252 N.W. 864
• Parties: BENSON v. SIOUX FALLS MEDICAL AND SURGICAL CLINIC et al.
• Court: South Dakota Supreme Court

62 S.D. 324

252 N.W. 864

BENSON

v.SIOUX FALLS MEDICAL AND SURGICAL CLINIC et al.

No. 7439.

Supreme Court of South Dakota.

February 23, 1934.

Rehearing denied June 28, 1934

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Emil A. Benson against the Sioux Falls Medical and Surgical Clinic and another. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment reversed.

L. E. Waggoner and B. O. Stordahl, both of Sioux Falls, for appellant.

Bailey & Voorhees, of Sioux Falls, for respondents.

ROBERTS, Presiding Judge.

This is an action to recover for the alleged malpractice of the defendants. The plaintiff on May 13, 1929, while in the employ of the Northwestern Bell Telephone Company, met with an accident and was taken by the employer to the defendant Sioux Falls Medical and Surgical Clinic for treatment. The complaint alleges that plaintiff received an injury to his back; that defendant Guy E. Van Demark, a member of the defendant clinic, negligently examined the plaintiff and failed to discover the nature of the injury; that defendant physician advised the plaintiff to continue in his employment and perform usual and ordinary work; that for a period of more than five weeks plaintiff, following the advice of the physician, continued, so far as he was physically able, to work; that the injury could have been readily cured in the first instance; and that by reason of such negligence the plaintiff is permanently injured.

On May 1, 1931, after the medical services had been rendered, plaintiff released his employer by two separate agreements. In the first agreement, the plaintiff acknowledged payment of $1,279.67 from the Northwestern Bell Telephone Company, paid to him pursuant to an order entered by the Industrial Commissioner on the 24th day of April, 1931, and released the employer “from any liability whatsoever” to him under the Workmen's Compensation Act of this state (Rev. Code 1919, § 9436 et seq., as amended). In the second agreement plaintiff acknowledged payment from the employer of the further sum of $3,721.31, and in consideration of such payment plaintiff signed and delivered a release as follows: “I hereby release and forever discharge said Northwestern Bell Telephone Company, its agents and servants, from any and all actions, causes of action, claims and demands, whether arising under said Company's Plan for Employees' Pensions, Disability Benefits and Death Benefits, or at common law, for upon or by reason of any damage, loss or injury which heretofore has been, or which hereafter may be sustained by me in consequence of an accident arising out of and in the course of my employment with said Northwestern Bell Telephone Company on or about the 13th day of May, 1929. I further declare, that I have considered the possibility that in consequence of said accident I may hereafter suffer damage or injury which is not now anticipated or ascertainable, and that I intend hereby to release all claims on account of any such damage or injury. I likewise declare that in giving this release I have not relied upon or been influenced by any representation, statement, or advice of any agent or employee of said Northwestern Bell Telephone Company, or of anyone acting in its or their behalf.” In addition to a general denial, the defendants by answer pleaded a settlement for all injuries. The court directed a verdict for the defendants upon the ground that the cause of action against the defendants, if one existed, was barred by the releases.

Plaintiff contends that the present action is a separate and distinct cause of action for the recovery of damages for the aggravation of the original injury caused by the negligence of defendant physician; that he could not have maintained such action against his employer, the Northwestern Bell Telephone Company; that the duty of the employer was to select a competent physician; and the employer, having performed this duty, was not liable for the injury resulting from the negligence or malpractice of the defendant physician.

[1][2] The releases in the instant case are broad and inclusive, and clearly were intended to include any and all claims against the employer arising from the accident. Did this include the aggravation of the original injury by the alleged negligence of the defendant physician, and, if the employer was liable for such alleged injury, is the plaintiff precluded from maintaining this action?

It is conceded that the original injury was compensable. Under section 9459, Rev. Code 1919, as amended by chapter 222, Laws of 1927, an employer is required to furnish “necessary first aid, medical, surgical and hospital services or other suitable and proper care” to an employee who has suffered a compensable disability, and it is compulsory upon an injured employee under section 9463, Rev. Code 1919, to submit himself for examination to a physician selected by the employer. Under the great weight of authority construing similar statutory provisions, the rule appears to be that an employee may recover for a new injury or aggravation of his injury, resulting directly and without intervening cause from medical or surgical treatment of a compensable injury. Polucha v. Landes, 60 N. D. 159, 233 N. W. 264, 268;Williams v. Dale, 139 Or. 105, 8 P.(2d) 578, 82 A. L. R. 922;Overbeek v. Nex, 261 Mich. 156, 246 N. W. 196;Vatalaro v. Thomas, 262 Mass. 383, 160 N. E. 269;Revell v. McCaughan, 162 Tenn. 532, 39 S.W.(2d) 269;Nall v. Ala. Utilities Co., 224 Ala. 33, 138 So. 411; and also see cases collected in note, 39 A. L. R. 1276.

A leading case is Booth & Flinn v. Cook, 79 Okl. 280, 193 P. 36, 38, in which the court said:

“We are aware that, in negligence cases not arising under compensation acts, many courts hold that the master's liability ceases when he exercises reasonable care in selecting competent physicians or surgeons. But workmen's compensation acts are a departure from cases of liability resulting from negligence and fix specific amounts of recovery for specific results of accidents. To deny recovery for the ultimate result of the accident where the disability has been increased by the intervening negligence or carelessness of the employer's selected physician would be to defeat one of the purposes of the act. Under workmen's compensation acts an employer is liable for all legitimate consequences following an accident, including unskillfulness or error of judgment of a physician furnished the injured employee as required by section 4 of our Compensation Act.”

A similar conclusion is stated in the case of Polucha v. Landes, supra:

“We are of the opinion that a workman injured in the course of his employment, and thereafter sustaining an aggravation of his injuries due either to the act of the physician employed by the bureau or to a physician reasonably employed by him, is entitled to compensation from the fund for the injuries sustained as so aggravated. Any other construction of the act, instead of providing the employee that sure and certain relief which the law has designed for his protection, would render him subject to the uncertainties of litigation for so much of his injuries as might be traceable to the negligence of his physician or surgeon and to the further contingency of the latter's financial responsibility.”

Plaintiff cites the case of Viita v. Fleming, 132 Minn. 128, 155 N. W. 1077, L. R. A. 1916D, 644, Ann. Cas. 1917E, 678. The court held in this case that an employer was not liable for negligent medical treatment of a compensable injury, and that, after payment of compensation, the injured employee can maintain an action against the physician for malpractice.

We may assume, as we are not required to decide, that the employer was liable under the Workmen's Compensation Act for the aggravation of the injury by the alleged negligence of the defendant physician. Defendants contend that since there cannot be more than one satisfaction for an injury, whether the injury by the wrongdoers was simultaneously inflicted or whether there was an aggravation subsequently as is alleged in this case, satisfaction by one of the wrongdoers is a bar to an action against the other. But the claim of the plaintiff for workmen's compensation was not based upon negligence or any wrongful act on the part of the employer. Liability under the provisions of the Workmen's Compensation Act is founded not on negligence, but on relationship. The compensation received by the plaintiff was not in the nature of damages for a tort, but was based upon the employment of the plaintiff. White v. Matthews, 221 App. Div. 551, 224 N. Y. S. 559. The employer and defendant physician were not joint tort-feasors.

Section 9440, Rev. Code 1919, provides that the rights and remedies granted to an employee subject to the provisions of the Workmen's Compensation Act on account of injury or death arising out of and in the course of employment shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin on account of an injury or death. Section 9446, Rev. Code of 1919, as amended by chapter 416, Laws of 1921, reads as follows (italics ours):

“Whenever an injury for which compensation is payable under this article shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages, or proceed against both the employer and such other person, but he shall not collect from both, and if compensation is awarded under this article, the employer having paid the compensation or having become liable therefor may collect in his own name, or that of the injured employee, or his personal representative, if deceased, from the other person against whom legal liability for damage exists the amount of such...